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The Lawlessness of the Trump Administration Hits #CaWater

According to the Washington Post’s fact checker, as of January, 2020, President Trump had made 16,241 false or misleading claims during his first three years in office. Sadly, this lack of regard for truth seems to be trickling down and infecting the Trump Administration’s management of the federal Central Valley Project (CVP) in California, one of the largest water storage and diversion projects in the country. Several events have come to light in just the last few days that show an alarming disregard for transparency, truth, and the law within the U.S. Bureau of Reclamation, the agency charged with managing the CVP.

First, the Bureau of Reclamation is now operating the massive CVP pumps in the Delta at almost four times the rate that the agency informed the federal district court in Fresno that it would pump in April. Keeping pumping rates low during the months of April and May is critically important to ensure that migrating juvenile salmon and steelhead can make it safely out of their freshwater rearing habitat to the ocean. Under the pre-Trump Administration biological opinions, pumping rates were limited during this period to the amount of San Joaquin River water flowing into the Delta in a critically dry year like this one. This San Joaquin River inflow:export ratio means that combined pumping of the CVP and State Water Project would have been limited to 1,500 cubic feet per second under the 2009 biological opinion to prevent salmon and steelhead from getting entrained into the project pumps and inhospitable south Delta.

In a sworn declaration to the Court on March 26th, Bureau of Reclamation operators stated that they expected pumping levels during April and May to be the same under the new Trump biological opinion as those levels would have been under the prior 2009 BiOp. This declaration was submitted in response to a motion from NRDC and our fishing and conservation colleagues asking the Court to keep the pre-Trump Administration BiOps in place while our challenge to the lawfulness of the new Trump BiOps was heard. Yet, less than a week later, on April 1, the Trump Administration began pumping three times what it told the Court it intended to pump in April and announced that it was expecting to increase pumping even more on April 3 (which it subsequently did, to almost four times the level it included in its declaration).

This massive increase in pumping threatens the survival of endangered winter-run Chinook salmon, threatened spring-run Chinook salmon, threatened Central Valley steelhead, and many more imperiled native fish that are currently migrating through the Delta. As California’s Attorney General explained in a letter asking Reclamation to reduce its pumping:

Early April is a critical time for endangered and threatened species that live in or migrate through the Delta. Approximately half of the juvenile populations of both Winter-run and Spring-run Chinook Salmon are currently present in the Delta and vulnerable to entrainment caused by Reclamation’s increased pumping. Critically endangered Delta smelt are likely spawning or rearing, and both spawning adult and larval Longfin Smelt are likely present in high densities. These smelt populations are also exposed to the dangers of entrainment caused by Reclamation’s increased rate of export. Reclamation’s greatly increased pumping over the requirements of the 2008/2009 BiOp also contradicts its submission in the White Declaration that the elimination of the I:E ratio should have no effect on Delta outflows this year. (Para. 55). Operating the Jones Pumping Plant at 2,700 (or more) cfs will alter Delta outflows compared to the 900 cfs that would have been required under the 2008/2009 BiOps. In order to conform its actions to the representations made to the District Court for the Eastern District of California, Reclamation must immediately reduce exports to at most 900 cfs and not increase pumping beyond the greater of minimum health and safety flows or the 1:1 I:E ratio for the remainder of April and May 2020.

Because of this threat, NRDC and our co-plaintiffs have asked the Court to temporarily restrain Reclamation from pumping in excess of the combined 1,500 cfs limit that it projected for April. The Court will likely rule on Tuesday.

The second alarming incident of malfeasance at Reclamation came to our attention in a recent FOIA response. In that response, CDFW employees raised the alarm that a Reclamation employee at the CVP pumps was falsifying data about how many fish had been salvaged and killed at the pumps. As CDFW explains (in the last three pages of this highly redacted document):

CDFW has been made aware that, at least since April 8, 2019, some of the fish data collected at the [Tracy Fish Collection Facility] has been falsified. Specifically, we received notice that at least one operator has failed to record presence of Chinook salmon after refusing to process salmonids (Table 1). Table 1 shows a clear and consistent pattern of zero catch of Chinook salmon from the operator in question after April 7, 2019, despite other operators recording detections of that species regularly. This raises concerns about data quality for all species....

The letter, dated June 25, 2019, predates the issuance of the 2019 Trump Biological Opinions for the Delta, which rely heavily on reported fish salvage and take numbers at the pumps as the trigger for “real-time” operations of the projects. In other words, Reclamation claims it doesn’t need to reduce pumping until a high number of listed fish had been reported as killed at the pumps. But when their own employees are falsifying data to under-report those incidents, the whole system lacks any valid basis. We don’t yet know what Reclamation did, if anything, in response to CDFW’s alert.

The third worrisome case of Reclamation flouting truth and law has come from a recent SWRCB letter notifying Reclamation that it is in violation of its water rights permits and state law. That letter warns that Reclamation violated Vernalis flow requirements in February, and that Reclamation’s proposed operations for April and May would further violate Vernalis pulse flow requirements. These requirements are generally designed to help imperiled fish migrate safely out of the San Joaquin system to the ocean, and, once again, Reclamation's reckless actions are harming California's fisheries.

All three of these actions demonstrate Reclamation’s increasing lawlessness when it comes to operating the CVP in California, and growing disregard for the extinction-level harm that its operations pose to California’s salmon runs and other natural resources. We are grateful that we are beginning to see the State push back against this lawlessness and hope that the courts also see through the growing thicket of lies and misdeeds.